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THE COMPLAINT STATED CAUSES OF ACTION FOR ASSAULT, BATTERY AND VIOLATION OF 42 USC 1983 AGAINST POLICE OFFICERS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated causes of action against police officers for assault, battery and violation of 42 USC 1983:

The allegations in the complaint, as amplified by the notice of claim, which must be liberally construed when determining a CPLR 3211(a)(7) motion … sufficiently set forth a claim for assault and battery. Plaintiff alleged that he was assaulted and battered by police during his arrest and suffered injuries that required hospital treatment. Plaintiff specified the location of the assault and stated that defendants committed the assault and battery knowingly, that the arrest was without probable cause and that he was not ultimately charged with a crime. Moreover, in the notice of claim, plaintiff alleged that he was “grabbed, had his arms twisted and forcefully handcuffed,” that he was physically abused and that he did not resist arrest.

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “A valid claim for battery exists where a person intentionally touches another without that person’s consent” … .

… [A] party may allege assault and battery as the basis for a suit under 42 USC § 1983 … . Corcoran v City of New York, 2020 NY Slip Op 05133, First Dept 9-29-20

 

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DEFENDANT LANDLORD NOT LIABLE FOR PLAINTIFF’S FALL OUT OF A WINDOW; NO ALLEGATION OF THE VIOLATION OF ANY RULE, REGULATION, CODE OR STANDARD (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property owner was not liable for plaintiff’s fall out of a window to the sidewalk below:

The record demonstrates that defendants may not be held liable for the injuries sustained by plaintiff when, upon tripping over speaker wires, he fell out of his bedroom window and onto the sidewalk below. Defendants met their burden for summary judgment by submitting evidence that the window, neither by its configuration or condition, presented a hazard in and of itself, and that defendants had no statutory or common-law duty to install window guards or stops for the benefit of adult plaintiff …

Plaintiff’s expert’s affidavit was insufficient to defeat the motion for summary judgment as it was not based on any rules, regulations, codes, standards or on the factual record … . Fraser v Reclaim Hous. Dev. Fund Corp., 2020 NY Slip Op 05135, First Dept 9-29-20

 

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PETITIONER POLICE OFFICER’S FALL GETTING OUT OF A POLICE CAR WAS NOT AN UNEXPECTED ACCIDENT OR DUE TO A RISK INHERENT IN THE JOB; PETITIONER WAS NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner police officer was not entitled to accidental disability retirement stemming from a fall. Petitioner was getting out of a police car in response to a family disturbance call when his firearm caught on the seatbelt causing him to fall to the ground:\

Supreme Court erred in granting the petition and annulling the board’s determination that petitioner’s injury did not arise from an unexpected accident or from a risk inherent in the job of being a police officer. The board correctly determined that petitioner’s injury was not caused by an accident as defined in the NYC Administrative Code and applicable case law.

“[N]ot every line-of-duty injury will support an award of accidental disability retirement . . . an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties . . . is not an accidental injury” … . Matter of Galluccio v O’Neill, 2020 NY Slip Op 05136, First Dept 9-29-20

 

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SUPREME COURT SHOULD HAVE ENSURED DEFENDANT WAS KNOWINGLY AND INTELLIGENTLY WAIVING THE INTOXICATION DEFENSE BEFORE ACCEPTING DEFENDANT’S GUILTY PLEA; IN THE PLEA COLLOQUY DEFENDANT TOLD THE COURT HE WAS DRUNK AND DIDN’T KNOW WHAT HE WAS DOING (FIRST DEPT).

The First Department, vacating defendant’s guilty plea (attempted burglary), determined Supreme Court should have ensured that the defendant understood he was waiving the intoxication defense by pleading guilty. During the plea colloquy defendant indicated he was drunk and didn’t know what he was doing when he entered a woman’s hotel room:

Once defendant raised the possible defense of intoxication during the allocution, the court was obligated to determine if he understood the defense, whether he in fact, had a viable defense and whether he wanted to waive the same … .

Defendant’s statement that he entered the victim’s hotel room “looking for money from the lady” did not effectively recant his earlier statement as to intoxication and did not relieve the court of its duty to engage in an additional inquiry into defendant’s understanding of the intoxication defense or the facts of the offense … . People v Muniz-Cayetano, 2020 NY Slip Op 05156, First Dept 9-29-20

 

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TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS-PASSENGER INJURY CASE SHOULD HAVE BEEN GRANTED; THE BUS DRIVER REACTED APPROPRIATELY TO A CAR SUDDENLY PULLING OUT IN FRONT OF THE BUS TO MAKE A U-TURN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant transit authority’s motion for summary judgment in this bus-passenger injury case should have been granted. The driver of a double-parked car pulled out in front of the bus to make a u-turn and the driver properly slammed on the brakes:

… [D]efendants established their prima facie entitlement to judgment as a matter of law by showing that their bus driver was presented with an emergency situation that was not of his own making when a vehicle that was double-parked on the right side of the roadway suddenly made a U-turn in front of him, and that he took reasonable and prudent action to avoid a collision … . They also met their initial burden of showing that their bus driver’s actions before the accident did not cause or contribute to the emergency, because the bus driver testified at his deposition that he was traveling no more than 15 miles per hour, warned the double-parked car before he attempted to pass by sounding his horn, and had his foot hovering over the brakes when the sedan suddenly made a U-turn in front of his bus when it was approximately five feet away. What is more, the driver had no duty to anticipate that another driver would make a sudden, illegal maneuver … .

… [T]he record shows that the driver was obliged to take immediate action when the car suddenly cut in front of the bus to make a U-turn, and stepping on the brakes to avoid a collision was a reasonable response to a situation not of defendants’ own making … . Santana-Lizardo v New York City Tr. Auth., 2020 NY Slip Op 05164, First Dept 9-29-20

 

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RESPONDENT CANDIDATE FOR THE NYS ASSEMBLY DID NOT DEMONSTRATE HE MAINTAINED A RESIDENCE IN NEW YORK FOR FIVE YEARS; PETITIONERS’ APPLICATION TO INVALIDATE RESPONDENT’S CANDIDACY SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined respondent, a candidate for the NYS Assembly, did not establish he maintained a residence in New York for five years. Therefore the petitioners’ application to invalidate respondent’s candidacy should have been granted:

Petitioners brought this proceeding pursuant to Election Law § 16-102 to declare invalid the designating petitions naming respondent. Petitioners alleged that, because respondent lived continuously in Illinois from 2009 until 2016, he failed to satisfy the New York residency requirements of article III (§ 7) of the State Constitution. Section 7 provides: “No person shall serve as a member of the legislature unless he or she . . . has been a resident of the state of New York for five years” … . …

Petitioner presented evidence that, in April 2009, respondent left Germany and briefly relocated to Albany, New York, the home of his father and aunt. He visited there for approximately four months until August 2009, at which time he moved to Chicago, Illinois. Respondent took up residence … [in] Chicago, Illinois, from which he: obtained an Illinois driver’s license; registered to vote in the State of Illinois; enrolled in a graduate school program; obtained employment; paid Illinois state and Federal income taxes using the Chicago residence address; and obtained a cell phone with a Chicago area code.

We note that respondent’s having voted in Illinois during the five year period preceding the upcoming election is inconsistent with his claim to have maintained New York as his residence throughout that five year period … . While we have held that being registered to vote in another state, standing alone, is not necessarily dispositive … , in this case, respondent’s time in Illinois … does not support his argument that he “always intended to return” to New York as required by Election Law § 1-104 (22). Matter of Patch v Bobilin, 2020 NY Slip Op 05172, First Dept 9-29-20

 

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THE STATEMENTS MADE ABOUT PLAINTIFF WERE PROTECTED BY QUALIFIED PRIVILEGE; PLAINTIFF WAS UNABLE TO SHOW THE STATEMENTS WERE MOTIVATED SOLELY BY MALICE; THE DEFAMATION ACTION WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined plaintiff’s defamation action was properly dismissed. Plaintiff was accused by a fellow library board member, Hoag, of misappropriating over $20,000 in library funds. A criminal investigation uncovered no wrongdoing and plaintiff brought the defamation suit. The defamatory statements were protected by a qualified privilege because Hoag had an interest in the subject matter and the statements were made to a person with a corresponding interest. Therefore the statements were actionable only if Hoag was motivated solely by malice. The court held the statements were made in good faith, despite evidence that Hoag disliked plaintiff:

“Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether” … . Those communications include ones protected by the qualified privilege that attaches to a person’s good faith communication “upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and . . . made to a person with a corresponding interest” … . …

Defendants … came forward with proof that Hoag made the communication in good faith, with Hoag and other Board members averring that their review of financial records, as well as plaintiff’s refusal to provide requested documentation, caused them to believe that plaintiff had made numerous questionable, unauthorized and/or undocumented expenditures of library funds. …

Inasmuch as the proof reflects that the inquiry into library spending by Hoag and other Board members was at least part of what led Hoag to accuse plaintiff of misappropriating funds, “even if [Hoag] disliked plaintiff or possessed some ill will towards her, plaintiff has failed to make an evidentiary showing that [Hoag was] motivated by malice alone in making the statement[]” … . Macumber v South New Berlin Lib., 2020 NY Slip Op 05113, Third Dept 9-24-20

 

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MISBEHAVIOR CHARGES BASED UPON ITEMS ALLEGEDLY FOUND DURING A SEARCH OF PETITIONER’S CELL CONDUCTED WHEN THE PETITIONER WAS NOT PRESENT ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department annulled the findings of guilt on possessing a weapon and possessing an altered item because defendant was not present during all of the search of his cell before the weapon was discovered:

… [W]ith respect to the charges of possessing a weapon and possessing an altered item, the Attorney General concedes, and we agree, that the findings of guilt as to those charges should be annulled and all references thereto expunged from petitioner’s institutional record on the ground that petitioner was not present during all of the search of the cell before the weapon was discovered. Matter of Sylvester v Annucci, 2020 NY Slip Op 05109, Third Dept 9-24-20

 

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AFTER CONVERTING THE ARTICLE 78 PETITION TO A COMPLAINT THE JUDGE SHOULD NOT HAVE TREATED THE MOTION TO DISMISS AS A SUMMARY JUDGMENT MOTION WITHOUT NOTIFYING THE PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge, after converting the article 78 petition to a complaint, should not have, sua sponte, dismissed the complaint without notifying the parties:

… [T]he Supreme Court denied the Comptroller’s motion to dismiss, and, pursuant to CPLR 103(c), converted the article 78 petition into a complaint asserting a declaratory judgment cause of action. Upon reaching the merits of the plaintiff’s complaint, the court sua sponte denied the plaintiff declaratory relief and directed dismissal of the complaint. …

Upon converting the article 78 petition into a complaint, the Supreme Court erred in reaching the merits of the complaint, and directing its dismissal. Having converted the petition to a complaint, the court could only reach the merits by giving the parties adequate notice that it was going to treat the defendant’s pre-answer motion to dismiss as one for summary judgment (see CPLR 3211[c] …). The defendant had not served an answer to either the petition or the complaint, and therefore, any motion for summary judgment would have been premature (see CPLR 3212[a]). Moreover, the record does not establish that the parties deliberately charted a summary judgment course … . Under these circumstances, the court’s determination on the merits of the complaint was premature. Matter of Gorelick v Suffolk County Comptroller’s Off., 2020 NY Slip Op 05048, Second Dept 9-23-20

 

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THE EXCESS INSURANCE CARRIER WAS NOT BARRED FROM RECOVERY OF THE AMOUNT IT CONTRIBUTED TO THE SETTLEMENT OF A PERSONAL INJURY ACTION BY THE VOLUNTARY PAYMENT DOCTRINE; THE EXCESS INSURANCE CARRIER’S BREACH-OF-THE-COVENANT-OF-GOOD-FAITH ACTION AGAINST THE PRIMARY CARRIER PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the excess insurance carrier, MetLife, could maintain an action against the primary liability carrier, GEICO, for breach of the implied covenant of good faith and fair dealing, alleging bad faith. GEICO  unsuccessfully argued the voluntary payment doctrine barred MetLife from recovering the amount it contributed to the settlement of the personal injury action stemming from an auto accident:

“The voluntary payment doctrine ‘bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law'” … . However, the voluntary payment doctrine does not bar an excess insurance carrier, such as MetLife, that contributed to a settlement of an underlying action from seeking to recover its settlement contribution from a primary insurance carrier, such as GEICO, based on the primary carrier’s alleged bad faith. Despite an excess insurance carrier’s decision to contribute to a settlement, an excess insurance carrier may later maintain an action against a primary insurance carrier for breaching its duty of good faith in defending and settling claims over which it exercised exclusive control, provided that the excess insurance carrier reserved its rights against the primary insurance carrier at the time of the settlement … . An insurer may be held liable for breaching its duty of good faith … , and a primary liability insurer owes an excess insurance carrier the same duty of good faith as the primary liability insurer owes its insureds … . Metropolitan Prop. & Cas. Ins. Co. v GEICO Gen. Ins. Co., 2020 NY Slip Op 05045, Second Dept 9-23-20

 

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